Incentivizing 'Active Debris Removal' Following the Failure of Mitigation Measures to Solve the Space Debris Problem: Current Challenges and Future Strategies.

• Author: Mudge, Adam G.

Introduction A. Issues and Objectives B. Context and Limitations C. Terminology I. Scope of the Space Debris Problem A. Causes of Space Debris 1. Mission-Related Debris 2. Discarded Rocket Bodies 3. Fragmentation Debris 4. Microparticulate Debris 5. Non-Operational Payloads B. Characteristics of Space Debris 1. Observability 2. Quantity, Mass, and Distribution Throughout Space C. Dangers of Space Debris 1. Manned and Unmanned Space Operations 2. Environmental Contamination D. Increase in Space Debris over Time 1. Fengyun-1C ASAT Test (2007) 2. Cosmos 2251/Iridium 33 Collision (2009) 3. Indian ASAT Test (2019) 4. Space-Faring Nations and Commercial Space Activities E. Conclusion II. Space Debris Mitigation Efforts and Failure A.Early National and International Space Debris Mitigation Efforts . B. IADC Space Debris Mitigation Efforts C. United Nations Space Debris Mitigation Efforts D. Failure of Space Debris Mitigation Efforts/Need for Active Debris Removal 1. Limitations of the Guidelines 2. Problems with Compliance 3. Failure to Reduce Debris 4. Consensus of Space Experts and Agencies E. Conclusion III. Active Debris Removal and Its Current Challenges A. Description of Active Debris Removal Technologies 1. Contactless Active Debris Removal 2. Capture and De-orbit/Re-orbit 3. Attachment of Active or Passive De-Orbit Aids B. Legal Challenges Complicating Active Debris Removal 1. Definition of Space Debris 2. No Legal Duty to Prevent or Remove Space Debris 3. Jurisdiction and Control of Space Debris 4. Liability for Space Debris 5. Export Control Laws 6. Regulatory Vacuum C. Policy Challenges to Active Debris Removal 1. Economic Challenges 2. Strategic Challenges D. Conclusion IV. Future Strategies A. New Space Treaty 1. Mandate Compliance with COPUOS Guidelines 2. Define Space Debris 3. Clarify International Obligations Regarding Space Debris 4. Adjust Liability Rules for Space Debris 5. Authorize the Abandonment of Space Objects 6. Establish a Global ADR Organization 7. Empower the ADR Organization to Raise Funds B. An Alternative Approach: Space Treaty Protocols C. Concurrent National Efforts 1. Licensing Requirements for Active Debris Removal 2. Taxes/Sanctions D. Conclusion V. Conclusion INTRODUCTION

1. Issues and Objectives

   At the dawn of the space age and for many years thereafter, outer space was accessible only to enormous governmental civil and defense infrastructures, [1] most notably those of the United States and the former Soviet Union. Over time that exclusivity evaporated, and as of November 2020, some 9,400 satellites have been launched into Earth orbit by governmental and commercial entities, of which only about 3,000 remain operational. [2]

   In addition to these functioning satellites, uncontrolled and non-operational man-made matter also exists in space. In total, approximately 23,000 space objects greater than 10 centimeters in diameter were being tracked by the United States Air Force's Space Surveillance Network (SSN) in 2018. [3] Many millions more pieces of smaller debris are estimated to be in orbit, but unobservable, and therefore untrackable, from Earth. [4] Some of this debris can be attributed to specific States, while much cannot.

   En masse, these nonfunctional and uncontrolled pieces of space debris pose serious collision risks to operational satellites and manned spacecraft, as well as to the surface of the Earth, ultimately even threatening to contaminate the space environment itself. This risk, which has been acknowledged for many decades, [5] has continued to grow as the space environment has become more and more congested. In order to reduce this risk, individual States and the international community have engaged in concerted debris mitigation efforts since the early 1990s, notably via the U.S. led, multi-national creation of the Inter-agency Space Debris Coordination Committee (IADC) in 1993 and the addition of space debris as a topic on the agenda of the Scientific and Technical Subcommittee (STSC) of the United Nations (U.N.) Committee on the Peaceful Uses of Outer Space (COPUOS) in 1992. [6] However, due to significant structural limitations within resulting mitigation guidelines and poor global compliance, these efforts have done little to stop year-on-year increases in the total number and mass of objects in Earth orbit. [7] Additionally, the emergence of new space-faring nations and commercial entities, accidental collisions, in-space fragmentations, and several intentional debris-creating events, specifically direct ascent anti-satellite (ASAT) missile tests, have compounded the problem of uncontrolled debris.

   It is now the conclusion of many leading space organizations, such as the European Space Agency (ESA), [8] that space-faring nations must collectively move beyond simply pursuing mitigation efforts alone and begin focusing on physically removing some of the debris from Earth orbit or properly stabilizing and storing it in special 'graveyard' orbits, a process known as remediation or, more commonly, active debris removal (ADR). [9] However, the legacy international space law regime, primarily inherited from the 1960s and 1970s in the form of five seminal U.N. Space Treaties (the Outer Space Treaty, [10] the Liability Convention, [11] the Rescue and Return Agreement, [12] the Registration Convention, [13] and, to a lesser extent, the Moon Agreement [14]), creates special legal challenges inhibiting ADR. For example, the U.N. Space Treaties not only fail to provide a legally binding definition for what constitutes space debris, but they fail to mention debris at all. Further, there are no clearly recognized international obligations with respect to the creation nor the removal of space debris. Fundamental concepts from these treaties appear to have been drafted without envisioning a future world containing ADR space operations. For example, the "jurisdiction and control" provision in Article VIII of the OST establishes enduring, hegemonic control for States of registry over their space objects and fail to provide a mechanism for the transfer or abandonment of space objects. Further, the liability regime established by the Liability Convention disincentivizes ADR when it comes to both the owner of the piece of debris and the State wishing to carry out the ADR operation. It also fails to set out a standard of fault or to establish a mechanism for the transfer of liability. Each of these issues threatens to complicate necessary global ADR efforts. National defense concerns, economic concerns, and various national laws adopted by States since this time, notably export control laws, have further complicated the legal and policy landscapes for ADR operations.

   The failure of mitigation efforts and the global need for ADR, along with the aforementioned complex legal and policy challenges, will be the focus of this article. Part I defines the scope of the problem posed by space debris thorough an analysis of its causes, its observable characteristics, and its distribution throughout the primary Earth orbits. It further explains the dangers posed by uncontrolled debris, especially in light of its significant increase over time, and concludes by highlighting several discrete contributing factors and events that have dramatically exacerbated this increase in recent years.

   Part II examines the historical failure of states to craft an international space lex lata to rein in or even moderate the increase in space debris. It details the drafting and widespread adoption of various soft law instruments at both the national and international levels. Ultimately, it argues that these measures have failed to adequately address the dangers posed by increasing space debris, thereby justifying the critical need for ADR.

   After this need for ADR has been substantiated, Part III opens by briefly explaining some of the most promising technological methods of ADR. Then it analyzes the structural and systemic international and national legal challenges which currently frustrate the efforts of governmental, inter-governmental, and non-governmental entities wishing to carry out ADR, as briefly described above. Much of this analysis focuses on either lacunae or fundamental concepts embedded within the OST and the Liability Treaty. Part III also highlights certain national laws, specifically export control laws, as well as several policy issues, such as economic costs and national security considerations, which pose similar challenges to the successful implementation of ADR.

   Finally, Part IV argues for a future strategy to address the challenges raised in Part III. Specifically, it advocates for the drafting and adoption of an entirely new multinational space treaty, describing in general terms the necessary changes to current international space law which must be made to facilitate the growth of ADR operations. Some of these changes include establishing new binding international definitions and obligations related to space debris, adjusting the jurisdiction and control rules for space debris, permitting the abandonment of space debris, modifying and modernizing the current liability regime, establishing a regulatory agency in charge of space debris, and empowering such an agency to raise funds for ADR. Short of the adoption of a new space treaty, Part IV alternatively discusses a role for more limited space protocols to existing U.N. treaties. Finally, Part IV concludes by addressing the ways in which individual States can also support ADR efforts through purely national means.

2. Context and Limitations

   Before launching into the body of the article, a quick note on the context of the public international space law regime is in order. Little hard law has been generated to move the ball forward on a large scale since the Registration Convention in 1974. Soft law agreements, such as memoranda of understanding, voluntary guidelines, and a slew of U.N. General Assembly (UNGA) resolutions...